Perez Raymundo Eulalio Alias Perez Raymundo E v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1076/2019

[2022] HKCFI 2998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1076 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. He appeared before the Court on 5 September 2022.

The applicant

3.The applicant is a national of the Philippines. He entered Hong Kong on 9 August 2008 with a false identity and was permitted to stay as a visitor until 23 August 2008. He did not depart and had overstayed since 24 August 2008. On 30 October 2008, he was arrested by police for overstaying. On 28 July 2009, he lodged a torture claim which was later taken as a non-refoulement claim upon the commencement of unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by his boss Antonio Villar.

4.According to the applicant, he used to work for Antonio who was the secretary of the Department of Interior Local Government and a member of Lakas Kampi Christian Muslim Democrats (“LKCMD”). Antonio was known for asking his people to buy votes for candidates from LKCMD and to beat those who failed to comply with the request. In 2007, there was an election for vice city mayor in which the applicant’s uncle from National People Coalition Party ran against a candidate from LKCMD. Unlike what he did in the previous elections, the applicant used the money to buy votes for his uncle. The candidate from LKCMD found out about the applicant’s conduct and reported to Antonio. That evening, the applicant learnt that some policemen visited his house. He then went into hiding. However, during that period, the applicant received phone calls from the police and also threatening letters. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 January 2015 (the “Director’s First Decision”).

The Director’s Decisions

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the absence or low intensity of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to him [14]; (iii) the applicant did not face any imminent threat or harm from Antonio [15]; and (iv) internal relocation was a viable option for him [16]-[19].

7.In the Notice of Further Decision dated 2 February 2017, the Director also concluded that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

8.The applicant first appealed the Director’s First Decision to the Board. On 27 November 2015, the Board conducted an oral hearing for his appeal, during which he was legally represented. The applicant also gave evidence before the Board [20]-[23].

9.Having considered all the evidence, the Board made the following findings. The Board questioned the authenticity of the newspaper submitted by the applicant which allegedly supported his assertion that he ran away from his home village due to death threats [27(a)]. Meanwhile, it also considered that, if Antonio had been monitoring the applicant as he claimed, he would not have shot the applicant’s house as the applicant was not home since 2007 [27(b)]. Further, the applicant’s claim that he was the target of the shooting incidents was unconvincing as he had not returned home since 2007 [27(c)]. In addition, the applicant’s evidence on Antonio’s practice to coerce the voters contradicted with the country of origin information (“COI”) [27(e)]-[29].

10.In assessing the individual grounds, the Board found that the applicant was not tortured by Antonio or the followers [47]-[48]; [52]; that he had failed to prove that he was, or still remained, a target of Antonio [52]; that his cousin was by then the vice mayor and could offer him protection if needed [56]; and internal relocation and state protection would be available to him [58]-[61].

11.For the above reasons, by way of (“the Board’s First Decision”) dated 13 October 2016, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk, and dismissed his appeal against the Director’s First Decision.

12.While the applicant was late in lodging his appeal against the Director’s Second Decision, the Board allowed his late filing as the delay was short [1]. The applicant’s ground of appeal against the Director’s assessment on his BOR 2 risk was that his family still received letters of death threats [3].

13.In the Board’s Second Decision, the Board recapped the applicant’s personal background and his claim. It proceeded to consider the COI which stated that Antonio had already passed away in early March 2019 [30]. On this basis, the Board found that whatever grudges the applicant might have, the threats from Antonio, if any, no longer existed.

14.Therefore, the Board rejected the applicant’s claim on BOR 2 risk and dismissed his appeal against the Director’s Second Decision.

Application for leave to apply for judicial review of the Board’s Decision

15.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Second Decision.

16.In his affirmation in support of his application and in his statement attached to Form 86, the applicant submitted a jumble of irrelevant and discursive reasons, which I shall summarize below.

(1)  Procedurally unfair: unlawfully fettered its discretion by refusing his appeal on the ground that they did not satisfy the requirement; failing to meet the greater care and duty owed to a self-represented claimant; failing to consider relevant and updated COI materials or cherry pick them; failing to call for psychological and psychiatric evaluation reports and the applicant was provided a duty lawyer resulting in lack of and/or insufficient legal representation.

(2)  Irrationality: the decision was irrational; failing to consider flagrant or mass violations of human rights in the Philippines; failing to consider state protection or extended state protection and failing to consider COI materials favourable to the applicant.

(3)  Error in law: the adjudicator erred in law to direct himself that to establish substantial ground to believe that there would be a risk of torture in future, he has to experience torture in the past and the adjudicator had applied the incorrect standard of proof.

(4)  Wednesbury unreasonable: by dismissing his appeal.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said if he returned to his country, he would be killed. His enemies will follow him wherever he goes. The government cannot protect him.

19.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

20.Those grounds in paragraph 16 above are mostly his personal comments or bare assertions without any evidence in support. It is clear that the Board dismissed his appeal on the basis that his evidence was not acceptable and the Board had given its reasons in support of it decisions. Without the factual basis in support of his claim, the Board has to dismiss his appeal. His complaint on the quality of legal representation is not within the province of the Board. The applicant had not raised any psychological or psychiatric issues in the hearing. The Board has no obligation to consider these issues on its own motion.

21.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 29^th day of September 2022

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1